Editorial: Defining ‘Related’ is Million-Dollar Question

By Boston Herald Editorial Staff

“Whether to amend the Constitution so we have a graduated income tax is an extraordinary public policy question,” said Kevin Martin, attorney for the plaintiffs.  “It’s an independent public policy issue which deserves independent consideration by the voters of the commonwealth.”

Supporters of the proposed “Millionaire’s Tax” have been clear on their goals.  They want the wealthy to contribute even more of their earnings to the state treasury.  They want more money for education. They want more money for transportation.

That they lumped all of these hopes and dreams into a single constitutional amendment, set to go before voters in November, may be what ultimately sinks this proposal.

In oral arguments before the state’s highest court yesterday, a lawyer for five business groups suing to disqualify the question from the ballot made a compelling case that, as conceived and as written, the proposed amendment fails the constitutional test.

The plaintiffs argue that the initiative — which would enshrine in the state Constitution a 4 percent tax on earnings over $1 million and kinda/sorta devote the proceeds to fund education and transportation — improperly lumps unrelated subject matters into a single question, which is not allowed under the Massachusetts Constitution.  The groups also argue that the initiative violates the constitutional ban on “specific appropriations” by initiative petition, and is improper because it seeks to impose a tax rate via the Constitution, which the Legislature is unable to amend.

“Whether to amend the Constitution so we have a graduated income tax is an extraordinary public policy question,” said Kevin Martin, attorney for the plaintiffs.  “It’s an independent public policy issue which deserves independent consideration by the voters of the commonwealth.”

Indeed, the arguments yesterday largely centered on the issue of relatedness, and whether the question meets the requirement that the initiative contain “only subjects … which are related or which are mutually dependent.”

Kate Cook, a lawyer for the petitioners, argued that the question represents a “unified public policy,” and said education and transportation were selected to benefit from the additional revenue “because we believe they are the key to social mobility,” and are traditionally underfunded.

But Justice Elspeth Cypher pushed back, noting that the policy is “only unified if you see it that way.”

And as Justice Scott Kafker noted, voters are being asked three distinct questions: 1) whether to impose a graduated income tax, 2) whether to spend the funds on education, and 3) whether to spend the funds on transportation.

“The public is having to make three different choices, and they don’t seem to be operationally related, except that they were related by the sponsors,” Kafker said.  He also pressed lawyers on whether, had the petitioners devoted the revenue to, say, pensions, solar panels and health care, the subject matter in the initiative would still be sufficiently “related,” a question no one really managed to answer.

In campaigning for this initiative supporters made little secret of the strategy — couple an unpopular tax increase (Massachusetts voters have repeatedly rejected a graduated income tax) with more popular spending initiatives that voters would have trouble rejecting.

It is now up to the court to determine whether playing cute is constitutional.